Continuous Sexual Abuse of a Child – California Penal Code 288.5
The crime of “continuous sexual abuse of a child” is described under California Penal Code 288.5. It should be noted that PC 288.5 charges requires three or more lewd acts, or unlawful sexual touching for three months or more by a person who has regular access to the minor under 14 years old.
Sex crime allegations against a minor are thoroughly investigated by law enforcement and aggressively prosecuted by the Los Angeles County District Attorney's Office. Even in a situation where no formal charges are filed, an accusation alone can ruin your personal and professional life. False allegations of sexual abuse of a child are not uncommon.
There are situations where a child will make false accusations after they were persuaded by another adult who had other motives, such as jealously or revenge. If you are under a criminal investigation for continuous sexual abuse of a child, you need to contact a criminal lawyer immediately. You should remain silent and not make any statements to law enforcement detectives.
Sexual contact under PC 288.5 includes oral copulation, masturbation, and penetration of the child's vagina or rectum. Lewd acts include willful touching of a child for the purpose of sexual arousal, such as touching a child's private areas through their clothes.
To give readers a better understanding of continuous sexual abuse of a child laws, our Los Angeles criminal defense attorneys are providing an outline below.
Defining PC 288.5 Continuous Sexual Abuse of a Child
California Penal Code 288.5 defines continuous sexual abuse of a minor:
- Anyone who engages in three or more acts of substantial sexual conduct or lewd or lascivious conduct with a minor under 14 by someone who has either has recurring access or lives with the child in the same home, over a time period of not less than three months.
The phrase “substantial sexual contact” in the context of PC 288.5 means oral copulation or masturbation of the minor or defendant, or the penetration of the minor's vagina or rectum with defendant's penis or a foreign object. The phrase “lewd or lascivious conduct” means the willful touching of the minor with the intent of sexual arousal.
The “touching” of the minor doesn't have to be only on their private parts or bare skin, rather it could also any portion of their body or on top of their clothes.
The “lewd and lascivious conduct” also includes a situation where the defendant causes the minor to touch their body, or someone else, with the intent of sexual gratification.
What the Prosecutor Must Prove for a Conviction
To be convicted of California Penal Code Section 288.5, continuous sexual abuse of a minor, the prosecutor has to prove all the elements of the crime beyond a reasonable doubt. These crucial factors are listed under CALCRIM 1120 Jury Instructions – Continuous Sex Abuse:
- Defendant lived in same home and had recurring access to minor
- Defendant engaged in three or more acts of substantial sexual contact or lewd or lascivious conduct with minor
- Three or more months passed between the first and last acts
- The minor was under 14 years old at the time of the acts
It's crucial to note here that any consent that may have been given by the minor for the sexual acts is not a valid defense because minors are not permitted to give sexual consent in California.
The related California offenses for Penal Code 288.5 include the following:
Penal Code 288 – Lewd acts with a minor
Penal Code 288a – Oral copulation with a minor
Penal Code 288.7 – Sexual acts with minor under 10
Penal Code 288b1 – Lewd acts with minor using force or fear
Penal Code 261.5 – Statutory rape
Penalties for Continuous Sexual Abuse of a Minor
If convicted of violating Penal Code 288.5, continuous sexual abuse of a minor, the penalties include six to sixteen years in a California state prison, a fine up to $10,000, and life-time registration as a sex offender under California Penal Code Section 290 (link).
Sex offender registration requires a defendant to register at their local police station every year within 5 days of their birthday and will usually include restrictions on where they can live.
A Penal Code 288.5 is considered a violent and serious felony offense, which means a conviction will be considered a “strike” under California's Three Strike Law. Penal Code 667.71 PC defines the habitual sex offender law in California.
Also, the defendant might be ordered to pay restitution to the victim and a restraining order will be issued against them that will prohibit any type of contact with the minor. In some cases, the
Los Angeles County Child Protective Services might get involved and remove the minor from the home.
A continuous sexual abuse of a child case is considered a crime involving moral turpitude, which means an undocumented immigrant will most likely face deportation after they serve their sentence.
Fighting Penal Code 288.5 Charges
If charged with continuous sexual PC 288.5 abuse of a minor, our criminal defense lawyers will closely examine all the details in order to determine the best strategy. Every case is unique, but some common defenses include:
Lack of recurring access
Recall in the elements of the crime above that the prosecutor must prove there was regular access to the minor. Perhaps we can make an argument this requisite was not met and that you can't be guilty of continuous sexual abuse.
Lack of evidence
We might be able to make an argument there is insufficient evidence to prove the case. For example, while physical contact may have occurred, it was mot sexual related. Recall the prosecutor must prove the touching of the minor was sexually motivated.
Also, we might argue there is insufficient evidence that you committed three acts of sexual contact within the past three months. If we are able to cast doubt on this crucial factor, you may have a good chance at avoiding a conviction.
There are situations where a minor will make false accusations due to other motives, such as anger or revenge. Perhaps the minor was told by another adult, such as an ex-spouse, to make the allegations due to a child custody battle. Perhaps the minor is exaggerating actually what happened.
If you were charged with continuous sexual abuse of a minor in violation of California Penal Code 288.5, call our Los Angeles criminal defense lawyers to review the case and options. If contacted by a police detective, you should not make any statements as you might incriminate yourself.
We might be able to negotiate with the prosecutor for lesser charges or even a case dismissal.
Cron, Israels & Stark is a criminal defense law firm located at 11755 Wilshire Blvd, 15th Floor, Los Angeles, CA 90025. We also have an office at 401 Wilshire Blvd #1200, Santa Monica, CA 90401. Contact our firm for a free case evaluation at (424) 372-3112.